England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM HER HONOUR JUDGE OWENS
Sitting in THE FAMILY COURT AT OXFORD
IN THE MATTER OF D (A boy) (born 30th March 2012)

		OX16P00167 Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2017

The Honourable Ms Justice Russell:

Introduction

1. This is an appeal from a decision refusing an application by F (the appellant and the child's mother) to relocate to Italy with D (the subject child) her son aged five and a child arrangements order (CAO) (under the provisions of the Children Act 1989 (CA) as amended by the Children and Families Act 2014 (CFA)) of 13^th January 2017, made by Her Honour Judge Owens sitting at the Family Court at Oxford. The child's father L cross- applied and sought a shared care CAO; he opposed the application for relocation.
2. The appellant sought permission to appeal and permission was granted for an oral application with appeal to follow if permission was granted by Mr Justice Baker on 11^th April 2017. The appeal hearing took place in open court, on 5^th May 2017, at the Royal Courts of Justice in London. The appellant (F) was represented by counsel; the respondent (L) appeared in person assisted by a McKenzie Friend. Permission was granted and the court heard the appeal. The appeal was allowed as the trial judge had made a fundamental procedural error in failing to resolve the issue of the future care of the child prior to considering the application for relocation.
3. In addition, the judge failed to consider or make any finding in respect of complaints of controlling and coercive behaviour on the part of L alleged by F. The effect of all forms of domestic abuse on children and their welfare has long been recognised by the Family Court.

Background

4. D is a child of Italian heritage as both his parents are Italian nationals who have lived together in England having previously met in Italy as teenagers. They moved here to work: L in 2001 and F followed in 2013 from her home town of M. D was born in England on 30^th March 2012 and has a British passport. After D was born in March 2012, L lost his job and F was still in work so L was at home looking after the baby while F was at work. The parties and D travelled to Italy in November 2015 to visit their families. While they were there L was criticised by members of F's family, and others, for failing to return to work to help provide for the family. Prior to this visit to Italy the couple had discussed plans to relocate either to Italy or to Lanzarote in the Canary Islands. Thus, it is a feature of this case that the parties had considered relocation previously, and that Italy is the domicile of origin and home country of both D's parents and he has a close connection with that country.
5. The relationship between F and L broke down during this visit to Italy so by the time they returned to the UK they were effectively estranged. In early 2016, when L found out that F was planning to leave what had been their home with D, he unilaterally terminated the tenancy agreement. When she was gone, L informed the police in an effort to get D's passport removed from her possession. The parties have lived separately since May 2016. Both F and L were in work and the care of D had been shared between them for the months leading up to the hearing in January 2017. The applications before the family court consisted of cross-applications in respect of who should be the child's main carer and where his primary residence should be in addition to the application by F to relocate to Italy.

Hearing and evidence

6. The hearing took place in the Family Court in Oxford over two days on 12^th and 13^th January 2017. The court heard from both the parents and from Emma Brown, the allocated Cafcass officer, who had prepared a s7 report in which she recommended that D's main carer be his mother, who should be given permission to relocate to Italy, while acknowledging that there would be a loss to D as he has a close relationship with both parents. F had made numerous complaints about L's controlling and emotionally abusive behaviour, which if true would be capable of amounting to the coercive behaviour set out in s77 (1) of the Serious Crime Act 2015 and would have fallen within the Statutory Guidance from the Home Office which followed the enactment of that legislation. The Family Court should be familiar with the guidance and take it into account when reaching any conclusions about conduct amounting to domestic abuse.
7. As it was, in this case the decision of the judge not to carry out any fact-finding meant that there was no consideration of potentially abusive and controlling behaviour, its effect on the child's mother and ultimately on the child himself. It is questionable whether a decision about his care and the continuance of a shared care regime could have been properly informed and such ignorance is likely to have been antipathetic to his best interests.

Law

8. In considering this application to appeal I have in mind FPR 2010 r30.12(3) (b) and consider that there has been a serious procedural irregularity in the proceedings principally because the judge failed to approach the case as she should have done by considering and deciding the question of the child's main carer and child arrangements, prior to considering the application to relocate. It is well established law that when the future care of a child is in dispute this must be resolved before an application for removal from the jurisdiction can be considered. The case law on relocation applications, going back over fifteen years and more, commencing with the case of Payne v Payne [2001] 1FLR 1052 (see Butler-Sloss P at [80]), makes it clear that the welfare of a child is best served by considering issues of care, and who can best provide that care is an issue that is to be decided in advance of considering relocation.
9. It is abundantly clear from her judgment that the judge, who had correctly identified the case law in respect of relocation cases and set them out at the beginning of her judgment, started where off where she should have concluded. It is not until the end of her judgement that the judge considered what arrangements there should be for the child and her analysis and reasoning for that, most fundamental, part of her decision is dealt with barely any reference to, or analysis of, the s1(3) welfare checklist; or of the issues directly connected with the care of the child, which had concerned the Cafcass Officer.
10. The judge's belated, deferred analysis of the future care of this child, who is best able to meet his needs, both at present and in the long term and what arrangements would meet his best interests as set out in her judgment, is flawed; not only because it was carried out after she had decided on the issue of relocation, but also because the judge's consideration of this child's overall welfare needs were considered within the context of relocation not as part of the necessary primary analysis of which parent was best placed to meet those needs. While there have been instances where a child's welfare has required that the court consider future care and relocation at once this is not a case (see in Re J (Leave to Remove: Urgent Case) [2007] 1 FLR 2033).
11. Secondly, the judge was wrong not to have considered and made findings in respect of the complaints of abusive and controlling behaviour on the part of L as alleged by F. It was the Cafcass officer's view that the child was living between, "what must be [an] incredible strain that both parents are clearly under". The judge simply split the child's time between two homes in what may seem to be an even-handed approach to a difficult and all too common problem. This is an unsophisticated, over-simplistic approach, all too often taken by the Family Court when making child arrangements orders, to attempt to adhere to the amendments to the CA brought in by the Children and Families Act 2014 by making an order for shared care which is an even split of time and to compel parents to co-operate. Splitting a child between two homes which are antagonistic and unsupportive of each other is not consistent with the best interests of a child nor congruent with that child's welfare.
12. Further, in this case, the judge's consideration, and dismissal of the Cafcass officer's recommendations, and her reasons given for the latter, as set out in the very last part of her judgment was at best superficial. Even if the judge's reasons for not following the Cafcass officer's recommendations could be considered sufficient (applying the dicta in Re J (Children) (Residence: Expert Evidence) [2001] 2 FCR 44) in this case, as it is clear from the structure of her judgment, the judge had, and was, considering the recommendations of Ms Brown primarily within the context of relocation.
13. It is not clear from the judgement why the judge considered it appropriate not to carry out any fact-finding, as if there was any basis for them, L's behaviour towards F is ultimately likely to have an effect on D. The judge did not apply, make reference to, or consider in her judgment, FPR 2010, PD12J nor why it would not have applied in this case, as allegations of coercive behaviour had been raised. Instead she relied on a previous case management decision by a District Judge that a separate fact finding was not necessary as a justification for carrying out no fact-finding at all in respect of L's conduct during co-habitation and in its aftermath, and of the parties' ability to work together for the benefit of D. This will have a direct impact on D; the probable ability of L to care for D on his own cannot be divorced from the effect on the child of the hostility between his parents, distress caused to his mother and the longer-term impact on the child of being split between two disparate households which are in conflict. It is questionable whether it is in any child's best interests to become or grow up in a milieu part of which is one parent's (or carer's) controlling behaviour in respect of that child's co-parent (carer).

Conclusion

14. The appeal is allowed.
15. Remitted to a different circuit judge for re-hearing in the first instance of the arrangements for D and, thereafter, of any renewed application by F to relocate to Italy. The case is to be listed before the designated Family Judge for case management and allocation in the first instance.
16. In addition, this court will order that D is to be separately represented and made a party to the proceedings under FPR 2010, r16.2 (1) as it is in D's best interests to do so. There are arguments that should be put forward on behalf of the child in respect of his long-term welfare and location, and his heritage. This child is of Italian heritage and most of his extended family live in Italy; while not a deciding factor it is one which should command some consideration by the tribunal deciding his future. The fact that as EU citizens his parents' residence and their status in the UK no longer has the certainty it previously had, and the possibility that relocation to Italy may become a necessity is a factor that should, properly, have been considered by the trial judge. As such this child falls within FPR 2010; PD16A paragraph 7.2 (b) and (g).
17. Subject to any representations to the contrary from Cafcass, Emma Brown is appointed as his guardian.
18. No order as to costs.